Parliamentarian Says Mchale's Leave Legal

October 22, 1992|by CHUCK AYERS And MARGIE PETERSON, The Morning Call

The state House parliamentarian yesterday rebutted allegations by local Republicans who claimed Democrat Paul McHale violated the state Constitution by not resigning his legislative seat when he left to serve in the Persian Gulf.

And questions concerning the involvement of U.S. Rep. Don Ritter's re-election campaign in what McHale called a "smear campaign against my military record" were met with conflicting answers from GOP and campaign officials.

House Parliamentarian Clancy Myer said the Pennsylvania Constitution allows legislators to keep their seat while serving in the National Guard or armed forces reserves.

"The way I read Article 2, Section 6, there is an exception for state legislators," said Myer, an attorney.

And unless someone takes the case to court, the House is the arbiter in such matters, he said. The Democratically controlled House has taken no action against McHale on the issue.

The question arose Tuesday when Lehigh County Republican Chairman Charles Mackenzie and attorney Blake Marles said McHale should have resigned in August 1990 when he left to serve in Persian Gulf as a Marine reservist. By not resigning until Feb. 25, 1991, McHale was able to accumulate time for his state legislator's pension that he might otherwise have lost, Mackenzie said.

As evidence, they produced Pennsylvania Supreme Court cases from 1942 and 1944. One involved a city mayor who was also an Army Reserve major ordered into active duty and the other was a township commissioner who was drafted into the Navy. The court said both must resign their offices once on active duty.

"I read both of those cases and they certainly do apply to offices other than the General Assembly," said Myer. "I'm aware of no case involving a state legislator."

Myer said the cases would not apply because of Article 2, Section 6, which says: "No member of Congress or other person holding any office (except of attorney-at-law or in the National Guard or in a Reserve component of the armed forces of the United States) under the United States or this commonwealth to which a salary, fee or perquisite is attached shall be a member of either House during his continuance in office."

Myer said he received no complaints or questions about McHale not resigning while McHale was in the Gulf.

"The only way that this would ever be addressed finally would be by court action," he said.

McHale questioned the timing of the accusations -- two weeks before the general election --and accused the Ritter campaign of complicity. Questions to Mackenzie and Ritter campaign chairman Michael Solomon produced conflicting answers.

Solomon said he was notified the day before the news conference by Mackenzie that county GOP officials were going to make the allegations public.

Solomon said the campaign would neither endorse nor condemn the attack on McHale until it had an opportunity to review the documents cited by Mackenzie and Marles. Besides, Solomon said, the campaign is powerless to stop private citizens from exercising their right of free speech.

"We said we would like to see the materials and review them before offering any comment," Solomon said.

Solomon denied McHale's accusation that Marles and Mackenzie were acting as Ritter minions.

"These are grown men, we cannot dictate the terms to anyone. They're big boys, and they made a decision to do it because in their minds, it was a legitimate issue to raise. They presented it as a fait accompli," said Solomon.

"We cannot dictate to the Lehigh County Republican Committee what to say and what not to say, not that we're in disagreement. We just want to see that information," he said.

Mackenzie, however, said he didn't recall notifying anyone with the Ritter organization. At the news conference, Marles said he hadn't been in touch with Ritter or his campaign staff either.

"I haven't talked to the Ritter people about this. I don't know what they knew or when they knew it," Mackenzie said.

Mackenzie said while he knew there would be political repercussions from making the allegations so close to the election, he denied that he was politically motivated to make the disclosure now.

"Can there be political downfall to this? If he violated the law, sure there can be. It might have negative impact for McHale if he violated the Constitution, but people should know that before the election not after," Mackenzie said.

Jack Lewis, spokesman for the state attorney general's office, said his office wouldn't get involved in a question like this unless a state agency asked for a legal opinion.

"It's a court decision; someone has to challenge it," said Lewis. "You'd have to have a judge make a ruling."

Mackenzie had said because McHale should have resigned in August 1990, he shouldn't have billed the taxpayers for his state car lease payments while in the Gulf. Mackenzie said McHale should have broken the lease and sent the car back right away.

But Andrea Hetrick of the auto lease department at Meridian Bank in Reading supported McHale in his claims that he and his wife tried to do just that.

Hetrick said Katherine McHale had contacted her in the fall to see if they could break the lease and return the car. Meridian could not take the car back because of insurance concerns, Hetrick said. In keeping with the federal Sailors and Soldiers Relief Act, which makes allowances for people at war, Meridian was able to reduce the lease payments temporarily, she said.